Louisville & N. R. Co. v. Parker, 6 Div. 471.
Decision Date | 27 June 1931 |
Docket Number | 6 Div. 471. |
Citation | 223 Ala. 626,138 So. 231 |
Parties | LOUISVILLE & N. R. CO. v. PARKER. |
Court | Alabama Supreme Court |
Rehearing Denied Dec. 3, 1931.
Appeal from Circuit Court, Cullman County; W. W. Callahan, Judge.
Action under Federal Employers' Liability Act by Roxie Parker as administratrix of the estate of Samuel D. Parker deceased, against the Louisville & Nashville Railroad Company.From a judgment for plaintiff, defendant appeals.
Affirmed conditionally.
Under the Federal Employers' Liability Act(45 U.S.C.A. §§ 51-59), the contributory negligence of an injured or deceased servant will not bar recovery, but will only reduce recovery proportionately.
Plea 3 as originally filed, is as follows:
Pleas 4 to 12, inclusive, adopt the general averments of plea 3.
The concluding paragraphs of the several pleas are, respectively, as follows:
4."Defendant alleges that intestate, under his employment as a section hand and trackwalker, was upon or dangerously near the south bound track and thereby voluntarily assumed the risk incident to trains being operated under orders of the dispatcher, in a northerly direction over the south bound main track and as a proximate consequence of the risk so voluntarily assumed by intestate, he was injured and killed."
5."Defendant alleges that intestate under his employment by the defendant as a section hand and trackwalker, voluntarily assumed the risk incident to trains being operated northerly over the south bound main track, under orders of the dispatcher, without lookout being maintained by the train operatives for section hands and trackwalkers, and as a proximate consequence of the risk so voluntarily assumed by intestate, he was injured and killed."
6."Defendant alleges that intestate, under his employment by the defendant as a section hand and trackwalker, voluntarily assumed the risk incident to trains being operated northerly over the south bound main track, under orders of the dispatcher, without warning by bell or whistle being sounded by operatives of the train, for section hands and trackwalkers, and as a proximate consequence of the risk so voluntarily assumed by intestate, he was injured and killed."
7."Defendant alleges that intestate, under his employment by the defendant as a section hand and trackwalker, voluntarily assumed the risk incident to trains being operated northerly over the south bound main track, under orders of the dispatcher, without a lookout being maintained by the train operatives, and without warning by bell or whistle being given or sounded to section men and trackwalkers, and as a proximate consequence of the risk so voluntarily assumed by intestate he was injured and killed."
8."The defendant further alleges that it was known to intestate that at times trains were operated over either main line in either direction under orders of the dispatcher, and that the train operatives of such trains, on said occasions, did not maintain lookout or watch for section men and trackwalkers, and with such knowledge and appreciation of the danger and risk incident to the duties of being upon said track as a section hand or trackwalker, the said intestate was upon the said track, and voluntarily assumed the risk incident to trains being operated thereover, by the operatives thereof without maintaining a lookout for section hands or trackwalkers, and as a proximate consequence of the risk so voluntarily assumed by intestate, he was injured and killed."
9."The defendant further alleges that it was known to intestate that at times trains were operated over either main line, in either direction, under orders of the dispatchers and the train operatives on such occasions did not give signals or warnings with bell or whistle for the benefit of section men or trackwalkers while so operating said train, and that said intestate was upon said track and voluntarily assumed the risk incident to trains being operated thereover by the operatives thereof, without giving signals or warnings with bell or whistle for the benefit of section men or trackwalkers, and as a proximate consequence of the risk so voluntarily assumed, the intestate was injured and killed."
10."Defendant further alleges that it was known to intestate that at times trains were operated over either main line in either direction under orders of dispatcher, and that the train operatives on such occasions did not maintain a lookout for section hands and trackwalkers, and that if they did maintain a lookout and discover a trackwalker upon or near the track, that they would assume that such trackwalker knew or was advised of the approach of the train by his observation and of his own knowledge, and without further notice or signal by the train operatives, and that he would, from his own knowledge of the approaching train, seek a place of safety from such approaching train, and with such knowledge, said intestate was upon the track and voluntarily assumed the risk which proximately resulted in his injury and death."
11."Defendant further alleges that it was known to intestate that at times trains were operated over either main line, in either direction under orders of dispatcher, and that the trains operated on such occasions did not give signals or warnings with bell or whistle while so operating said trains, for section hands and trackwalkers, and that if they did give signals or warnings with bell or whistle after discovering a trackwalker upon or near the track, that they would assume that such trackwalker knew or was advised of the approach of the train, and that he would, from his own knowledge of the approaching train, seek a place of safety from such approaching train, and with such knowledge, said intestate was upon the track and voluntarily assumed the risk which proximately resulted in his injury and death."
12."Defendant further alleges that it was known to intestate that at times trains were operated over either main line, in either direction, under orders of the dispatcher and that the train operatives, on such occasions, did not maintain a lookout for section men and trackwalkers, and did not give warning or signals with bell or whistle to section men or trackwalkers, while so operating said train, and that if they did maintain a lookout and discover a trackwalker on or near the track, or if they did give warning or signals with bell or whistle to such section men or trackwalkers, while so operating said train, that they would assume that such trackwalker knew and was advised of the approach of the train by his own observation and of his own knowledge,...
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